NECESSITY,
FUNCTION, AND CONFORMITY: KRS Chapter 350 in pertinent part requires the
cabinet to rigidly enforce administrative regulations promulgated to control
the injurious effects of surface coal mining and reclamation operations. This
administrative regulation generally sets forth a rigid enforcement and
inspection policy for the cabinet. This administrative regulation directs that
inspections be made at irregular intervals and without need of a warrant or
prior notice to the permittee, operator, or person. This administrative
regulation requires certain frequencies for inspections and complete
preservation of the evidence, records and observations made during inspections.
This administrative regulation also sets forth the general policy of public
participation in the enforcement process and references the civil and criminal
penalties of KRS Chapter 350.

Section 1.
Applicability. The provisions of this chapter shall apply to all surface coal
mining and reclamation operations and coal exploration and reclamation
operations.

Section 2.
Inspection and Enforcement. In accordance with the provisions of this chapter,
the cabinet shall conduct or cause to be conducted inspections, studies,
investigations, or other determinations as it deems reasonable and necessary to
obtain information and evidence with which to ensure that surface coal mining
and reclamation operations and coal exploration and reclamation operations are
conducted in accordance with the provisions of KRS Chapter 350; 405 KAR
Chapters 7 through 24; and all terms and conditions of the applicable permit or
approval.

Section 3.
Timing and Conduct of Inspections. (1) Right of entry and access. Authorized
representatives of the cabinet shall:

(a) Have
unrestricted right of entry and access to areas affected by coal exploration
and reclamation operations and areas affected by surface coal mining and
reclamation operations for any purpose associated with their proper duties
pursuant to KRS Chapter 350 or 405 KAR including but not limited to activities
associated with the conducting of inspections; and

(b) At
reasonable times and without delay, have unrestricted access to and authority
to copy any records required to be kept under KRS Chapter 350 and 405 KAR and
have unrestricted access to, for the purpose of inspecting, any monitoring
equipment required under or pursuant to KRS Chapter 350 or 405 KAR.

(2) Presentation
of credentials. Authorized representatives of the cabinet shall present
credentials for identification purposes upon request by a representative of the
permittee, operator or person conducting the coal exploration and reclamation
operations on the affected area.

(3) Prior
notice. The cabinet shall have no obligation to give prior notice that an
inspection will be conducted.

(4) Timing.
Inspections shall ordinarily be conducted at irregular and unscheduled times
during normal workdays, but may be conducted at night or on weekends or
holidays if the cabinet deems the inspections necessary to properly monitor
compliance with KRS Chapter 350; 405 KAR Chapters 7 through 24; and terms and
conditions of the applicable permit or approval.

(5) Frequency
of inspections.

(a) Partial
inspections of surface coal mining and reclamation operations. A partial
inspection of surface coal mining and reclamation operations is an on-site or
aerial review of a permittee, operator, or person's compliance with some of the
permit terms and conditions and some of the requirements of KRS Chapter 350 and
405 KAR Chapters 7 through 24. Unless the cabinet has received notice of
temporary cessation under 405 KAR 16:010, Section 7, or 405 KAR 18:010, Section
5, the cabinet shall conduct an average of at least one (1) partial inspection
per month of each area affected by surface coal mining and reclamation
operations permitted under 405 KAR Chapter 8 at least until phase I
reclamation, as determined under 405 KAR 10:040, has been completed on the
entire permit area. After phase I reclamation, or if the cabinet has received
notice of temporary cessation, the cabinet shall conduct partial inspections
until the cabinet determines that the permit area is sufficiently stable with
respect to mass stability, erosion, revegetation, water quality and other
reclamation requirements so that the quarterly complete inspections required
under paragraph (b) of this subsection will provide adequate inspection of the
permit area.

(b) Complete
inspections of surface coal mining and reclamation operations. A complete
inspection of surface coal mining and reclamation operations is an on-site
review of a permittee, operator, or person's compliance with all of the permit
terms and conditions and all of the requirements of KRS Chapter 350 and 405 KAR
Chapters 7 through 24 within the entire area disturbed or affected by surface
coal mining and reclamation operations. The cabinet shall conduct an average of
at least one (1) complete inspection per calendar quarter of each area affected
by surface coal mining and reclamation operations permitted under 405 KAR
Chapter 8.

(a) Aerial
inspections shall be conducted in a manner that reasonably insures the
identification and documentation of conditions at each surface coal mining and
reclamation site and each coal exploration and reclamation site inspected.

(b) Any
potential violation observed during an aerial inspection shall be investigated
on site within three (3) days provided that any indication of a condition,
practice, or violation constituting cause for the issuance of a cessation order
under 405 KAR 12:020, Section 3(1)(b) and (c) shall be investigated on site
immediately and provided further that an aerial inspection which necessitates
an on-site inspection of a potential violation shall not be considered to be an
additional partial inspection for the purposes of subsection (5) of the
section.

Section 4.
Records of Inspections. (1) Authorized representatives of the cabinet shall
make and maintain written records of inspections and other activities including
observations made and factual matters discovered. A copy of the records shall
be made available to the permittee, operator, or person conducting the coal
exploration and reclamation operations and shall be available for public
inspection at the appropriate regional office of the department in accordance
with the Kentucky Open Record Laws, KRS 61.870 through KRS 61.884, until at
least five (5) years after final bond release on the entire permit area or
until at least five (5) years after bond forfeiture. For unpermitted areas, the
cabinet shall maintain the records until at least five (5) years after the
final action of the cabinet regarding the operations.

(2)(a) For
permitted areas for which final bond release has been granted pursuant to 405
KAR Chapter 10; for areas for which bond has been forfeited pursuant to 405 KAR
Chapter 10; and for unpermitted areas for which the cabinet has taken final
action, the cabinet may, at its own option and expense and as an alternative to
maintaining the information for public inspection at the location identified in
accordance with subsection (1) of this section, retain information at a
location other than the department's appropriate regional office and, at the
request of any person:

1. Provide
copies of the information promptly by mail to the person; or

2. Transfer
the information to the department's appropriate regional office for public
inspection.

(b) For
situations in which the cabinet provides information in accordance with this
subsection, the cabinet shall maintain, for public inspection at the
department's appropriate regional office, a description of the information
available for mailing or submission to the appropriate regional office and the
procedures to be used for obtaining the information.

(3) Upon
inspection of coal exploration and reclamation operations and surface coal
mining and reclamation operations, authorized representatives of the cabinet
shall collect evidence of every observed violation of a permit term or
condition, every observed violation of a term or condition of approval (for
coal exploration and reclamation operations requiring cabinet approval), and
every observed violation of a requirement of KRS Chapter 350 or an
administrative regulation promulgated pursuant thereto.

(4) The cabinet
shall preserve evidence collected pursuant to subsection (3) of this section
where appropriate in order that the evidence may be presented at hearings held
pursuant to 405 KAR 7:092.

Section 5.
Penalties and Sanctions. Any person who violates any provision of KRS Chapter
350; any provision of 405 KAR Chapters 7 through 24; any permit term or
condition; or any term or condition of approval (for coal exploration and
reclamation operations requiring cabinet approval) and any person who fails to
perform the duties imposed by these provisions or who fails to comply with a
determination or order of the cabinet pursuant to these provisions shall be
subject to civil and criminal penalties as set forth in KRS 350.465(3)(h), KRS
350.990, 405 KAR 7:092, and any other applicable provision of law and shall be
subject to applicable sanctions as set forth in KRS 350.130 or any other
applicable provision of law. Violations by any person conducting surface coal
mining and reclamation operations on behalf of a permittee shall be attributed
to the permittee, unless the permittee establishes that they were acts of
deliberate sabotage. Violations by any person conducting coal exploration and
reclamation operations shall be attributed to the person conducting the coal
exploration and reclamation operations or the person identified in the notice
of intention to explore or in the application for coal exploration and
reclamation approval submitted pursuant to 405 KAR 8:020, unless the person
establishes that they were acts of deliberate sabotage.

Section 6.
Public Participation. Any person shall have the opportunity to request an
inspection and to participate in enforcement actions of the cabinet as provided
in 405 KAR 12:030.

Section 7.
Formal Review. Any person having an interest which is or may be adversely
affected by the issuance, modification, vacation, or termination of a notice or
order may request review of that action pursuant to 405 KAR 7:092. The filing
of a request for a hearing shall not operate as a stay of any notice or order
or any modification, termination, or vacation thereof. (8 Ky.R. 1522; Am. 9
Ky.R. 697; eff. 1-6-83; 11 Ky.R. 1831; eff. 8-13-85; 20 Ky.R. 137; eff.
9-22-93.)